Data Scape Limited v. Dell Technologies, Inc. et al

Western District of Texas, txwd-6:2019-cv-00129

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2 EXHIBIT A Case 6:16-cv-00089-RWS-JDL Case 6:19-cv-00129-ADA Document Document 50 37-2 Filed 07/28/16 Filed 05/08/19 Page 1Page of 212 PageID of 22 #: 611 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS TYLER DIVISION REALTIME DATA LLC d/b/a IXO, Plaintiff, v. Case No. 6:16-cv-89 DELL INC. AND EMC CORPORATION JURY TRIAL DEMANDED Defendants. DEFENDANT EMC CORPORATION'S MOTION TO TRANSFER VENUE TO THE U.S. DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA Case 6:16-cv-00089-RWS-JDL Case 6:19-cv-00129-ADA Document Document 50 37-2 Filed 07/28/16 Filed 05/08/19 Page 2Page of 213 PageID of 22 #: 612 TABLE OF CONTENTS Page I. INTRODUCTION .............................................................................................................. 1 II. FACTUAL BACKGROUND ............................................................................................. 2 A. Realtime's Lawsuits ................................................................................................ 3 B. Realtime Has No Real Connection to this District ................................................. 3 C. EMC Has No Connection to this District ............................................................... 5 D. Potential Non-Party Witnesses Reside Outside of the Eastern District of Texas ....................................................................................................................... 6 III. ARGUMENT ...................................................................................................................... 7 A. Realtime Could Have Brought This Action In N.D. Cal. ....................................... 7 B. The Private Interest Factors Favor Transfer to the N.D. Cal. ................................. 7 1. The Primary Sources Of Proof Are In N.D. Cal. ........................................ 8 2. N.D. Cal. Possesses the Relevant Subpoena Power.................................... 9 3. The Cost of Attendance for Willing Witnesses Will Be Substantially Lower In The Northern District of California ..................... 10 4. Considerations of Judicial Economy Do Not Weigh Against Transfer ..................................................................................................... 11 C. The Public Interest Factors Also Favor Transfer To The Northern District Of California ......................................................................................................... 12 1. N.D. Cal. Has A Strong Local Interest In This Litigation ........................ 13 2. The Remaining Public Interest Factors Are Neutral ................................. 13 D. N.D. Cal. is Still the Clearly More Convenient Forum Even Considering the Additional EMC Products Accused by Realtime ............................................ 14 IV. CONCLUSION ................................................................................................................. 15 ii Case 6:16-cv-00089-RWS-JDL Case 6:19-cv-00129-ADA Document Document 50 37-2 Filed 07/28/16 Filed 05/08/19 Page 3Page of 214 PageID of 22 #: 613 TABLE OF AUTHORITIES Page(s) Cases In re Genentech, Inc., 566 F.3d 1338 (Fed. Cir. 2009)........................................................................................ passim GeoTag, Inc. v. Starbucks Corp., No. 2:10-cv-572, 2013 WL 890484 (E.D. Tex. Jan. 14, 2013) ...............................................12 In re Hoffmann-La Roche Inc., 587 F.3d 1333 (Fed. Cir. 2009)................................................................................................13 Innovative Global Sys. LLC v. OnStar, LLC, No. 6:10-CV-574-LED-JDL, ECF No. 156, Order (E.D. Tex. Feb. 14, 2012) .......................11 IXO v. MetroPCS Texas (T-Mobile), LLC, No. 6-10-cv-00493 (E.D. Tex. 2010) .........................................................................................4 Klausner Techs., Inc. v. Interactive Intelligence Grp., Inc., No. 6:11-cv-578-LED, ECF No. 36, Order (E.D. Tex. Sept. 26, 2012) ..................................11 LT Tech, LLC v. Frontrange Solutions USA Inc., 2013 WL 6181983 .............................................................................................................12, 14 In re Microsoft Corp., 630 F.3d 1361 (Fed. Cir. 2011)........................................................................................4, 9, 13 Network Prot. Scis. LLC v. Juniper Networks, Inc., No. 2:10-CV-224-JRG, 2012 WL 194382 (E.D. Tex. Jan. 23, 2012) .....................................13 Optimum Power Solutions LLC v. Apple, Inc., 794 F. Supp.2d 696 (E.D. Tex. 2011) ......................................................................................14 Realtime Data LLC d/b/a IXO v. Apple Inc., Civil Action No. 3:16-cv-02595 (N.D. Cal.) .............................................................................3 Realtime Data LLC d/b/a IXO v. Teradata Operations Inc., Civil Action No. 3:16-cv-01836 (N.D. Cal.), Civil Action No. 2:16-cv-02743 (C.D. Cal.) ..................................................................................................................................3 Realtime Data, LLC v. Actian Corporation et al., No. 6:15-cv-00463-LED-JDL ....................................................................................................3 Realtime Data, LLC v. Packeteer, Inc., et al., Civ. A. No. 6:08-cv-00144-LED-JDL .......................................................................................4 iii Case 6:16-cv-00089-RWS-JDL Case 6:19-cv-00129-ADA Document Document 50 37-2 Filed 07/28/16 Filed 05/08/19 Page 4Page of 215 PageID of 22 #: 614 Ricoh Co. v. Honeywell, Inc., 817 F. Supp. 473 (D.N.J. 1993) ...............................................................................................15 In re Verizon Bus. Network Servs., Inc., 635 F.3d 559 (Fed. Cir. 2011)..................................................................................................12 In re Volkswagen AG, 371 F.3d 201 (5th Cir. 2004) .....................................................................................................7 In re Volkswagen of America, Inc., 545 F.3d 304 (5th Cir. 2008) .....................................................................................8, 9, 10, 12 In re Zimmer Holdings, Inc., 609 F.3d 1378 (Fed. Cir. 2010)....................................................................................11, 12, 13 Statutes 28 U.S.C. § 1400(b) .........................................................................................................................7 28 U.S.C. § 1404(a) ...................................................................................................................7, 12 Other Authorities Fed. R. Civ. P. 45(d)(3)(A)(ii) ...................................................................................................9, 10 iv Case 6:16-cv-00089-RWS-JDL Case 6:19-cv-00129-ADA Document Document 50 37-2 Filed 07/28/16 Filed 05/08/19 Page 5Page of 216 PageID of 22 #: 615 I. INTRODUCTION Plaintiff Realtime Data LLC d/b/a IXO ("Realtime") has brought suit against Defendant EMC Corporation ("EMC") in a District with which neither party has a real connection. Moreover, Realtime has ignored that all of EMC's relevant witnesses and documents for the accused EMC Data Domain and DD Series products, are located in the Northern District of California. The other EMC products perfunctorily identified in the Complaint (if they are not dismissed from the litigation1) also have meaningful ties to Northern California.2 Because the Northern District of California is a clearly more convenient forum, EMC requests that the Court grant Defendant's co- pending Joint Motion to Sever EMC and Stay the Claim Against Dell as to a Specific Product (Dkt. No. 49), then transfer EMC to the U.S. District Court for the Northern District of California ("N.D. Cal."). Realtime, a New York corporation, brought suit against EMC Corporation ("EMC"), a Massachusetts corporation with a substantial presence in Northern California, in the Eastern District of Texas. Importantly, neither party has any ties to this District other than documents that Realtime pre-positioned in a small unmanned office in Tyler, TX in anticipation of litigation. Although Realtime accused three EMC products of infringement, Realtime only even attempted to plead factual allegations for one product (although those allegations were deficient). For this product, Data Domain3, all of the relevant witnesses and documents are located in N.D. Cal. Even considering the other two products for which Realtime pled no facts (VNX2 and XtremIO), a large number of witnesses and documents, particularly for marketing, are located in N.D. Cal. In 1 But see Defendant EMC Corporation's Motion to Dismiss Plaintiff Realtime Data LLC d/b/a IXO's Amended Complaint for Failure to State a Claim ("EMC's Motion to Dismiss"), Dkt. No. 39 at 7. 2 EMC has moved jointly with Dell to sever EMC from the case and sever the joint claims made by Realtime against a product identified as the "Dell/EMC DD series deduplication storage systems." See Dkt. No. 49. As discussed in that motion, the accused joint product is actually an EMC product which Dell markets and sells. EMC and Dell also seek in that motion to stay the claim against Dell with respect to this accused joint product. 3 Also referred to in Realtime's Amended Complaint as the Dell/EMC DD Series deduplication storage systems. See Dkt. No. 36 at ¶¶ 27 and 63. 1 Case 6:16-cv-00089-RWS-JDL Case 6:19-cv-00129-ADA Document Document 50 37-2 Filed 07/28/16 Filed 05/08/19 Page 6Page of 217 PageID of 22 #: 616 addition, EMC has identified at least seven potential non-party witnesses in N.D. Cal., including former employees with relevant knowledge for the accused technology and at least one prior art inventor. Importantly, all of EMC's relevant activities take place far outside of Texas. EMC's entire Texas presence consists of local sales offices; none of EMC's Texas employees are involved in the design, development, and testing of the allegedly infringing products. EMC has no offices within the Eastern District of Texas. Realtime's only known potential witnesses all reside in New York. Because Northern California clearly would be a more convenient place for this case to be litigated, the Court should transfer this case to the N.D. Cal. II. FACTUAL BACKGROUND On February 26, 2016, Realtime sued EMC Corporation, Dell Inc., Veeam Software Corporation and iland Internet Solutions Corp. for infringement of two U.S. Patents that concern techniques for data compression.4 See generally Dkt. No. 36. Defendants EMC and Dell Inc. filed a joint motion to dismiss Realtime's allegations on May 19, 2016. See Dkt. No. 21. Realtime filed an Amended Complaint on June 9, 2016. See Dkt. No. 36. On June 23, 2016, because Realtime's allegations remained deficient, EMC filed a motion to dismiss Realtime's allegations with prejudice without leave to re-file. See Dkt. No. 39. The only product against which Realtime made any factual allegations (albeit deficient ones) was EMC's Data Domain product. Realtime also accused−without any factual support−the EMC VNX2 Series products (including the EMC VNX5200, VNX5400, VNX5600, VNX5800, VNX7600, & VNX8000 products) and the EMC XtremIO Storage Array. Id. at ¶¶26 & 62. Realtime also alleges that Dell sells products "incorporating an EMC product" that infringes Realtime's two patents. Id. at ¶¶27 & 63. Specifically, Realtime accuses the "Dell/EMC DD Series deduplication storage systems (including 4 Realtime subsequently dismissed Veeam and iland and, on June 9, 2016, filed an Amended Complaint. 2 Case 6:16-cv-00089-RWS-JDL Case 6:19-cv-00129-ADA Document Document 50 37-2 Filed 07/28/16 Filed 05/08/19 Page 7Page of 218 PageID of 22 #: 617 DD140, DD610, DD630, and DD670), which are appliances incorporating EMC's Data Domain Operating System." Id. A. Realtime's Lawsuits Realtime is presently litigating against Apple Inc. in the N.D. Cal. See Realtime Data LLC d/b/a IXO v. Apple Inc., Civil Action No. 3:16-cv-02595 (N.D. Cal.). Until last month, Realtime was litigating against Teradata Operations, Inc. in the N.D. Cal.; however, that case was consolidated with a separate case filed by Realtime against Teradata in the Central District of California. See Realtime Data LLC d/b/a IXO v. Teradata Operations Inc., Civil Action No. 3:16- cv-01836 (N.D. Cal.) and Civil Action No. 2:16-cv-02743 (C.D. Cal.). Realtime is also currently litigating against six defendants (out of an original ten defendants) including Dell in E.D. Texas: Realtime Data, LLC v. Actian Corporation et al., No. 6:15-cv-00463-LED-JDL (Lead case) ("Realtime 2015 Cases"). In the Realtime 2015 cases, this Court transferred two defendants−Teradata and DropBox−to N.D. Cal.5 B. Realtime Has No Real Connection to this District Realtime is not a Texas company. Realtime is a New York limited liability company, which Realtime concedes in its Amended Complaint. See Dkt. No. 36 at ¶ 1. Realtime's only connection to this District is what Realtime calls a "place[] of business at 1828 E.S.E. Loop 323, Tyler, Texas 75701." Id. Realtime does not explain what "business," if any, is actually conducted at this location. Realtime appears to maintain this office solely in an attempt to bring suit in Texas (as opposed to New York where it is incorporated and where its principals reside and work). Indeed, in responding to motions to change venue filed in another case, Realtime has conceded that it did not lease an office in Tyler until October 6, 2009, which is long after the priority date it claims for the 5 Although this Court ordered Dropbox's transfer, Realtime dismissed its case against Dropbox prior to the actual transfer. 3 Case 6:16-cv-00089-RWS-JDL Case 6:19-cv-00129-ADA Document Document 50 37-2 Filed 07/28/16 Filed 05/08/19 Page 8Page of 219 PageID of 22 #: 618 asserted patents and thus presumably long after any work was done on a claimed invention. See Declaration of J. Michael Woods ISO EMC Corporation's Motion to Transfer Venue ("Woods Decl."), Ex. A ¶¶ 5-7. Realtime also has conceded that the Tyler office was an artifact of litigation. Id. Realtime leased the office to advance its litigation and settlement-related licensing activities after it had filed suit. Id. Further, there is no indication that Realtime has any principals or employees who reside in this District. All of the "will call" party witnesses identified by Realtime in a prior litigation involving one of the asserted patents appear to reside in New York. In particular, in Realtime Data LLC d/b/a/ IXO v. MetroPCS Texas (T-Mobile), LLC, No. 6-10-cv-00493 (E.D. Tex. 2010), Realtime identified three party-witnesses: James Fallon, Richard Tashjian and Gerald Padian. See Woods Decl. Ex. B. Each of these witnesses resides in New York according to the information provided to the U.S. Patent and Trademark Office and placed on their law firm's website. See Woods Decl., Exs. C & D. In fact, after reviewing declarations filed by Realtime in past cases, EMC has found no instance where Realtime identified a witness—party or non-party—who resides in this District and who would be called to testify at trial. See Woods Decl. ¶ 2. Prior to litigation, Realtime also did not store its documents in this District. In its response filed in Realtime Data, LLC v. Packeteer, Inc., et al., Civ. A. No. 6:08-cv-00144-LED-JDL, Realtime unequivocally affirmed that all of its witnesses and sources of information were located in New York, New York. See Woods Decl. Ex. E at 9 and 12. Even if Realtime subsequently chose to move its information to this District or to access that information from this District, such litigation- driven ploys are ignored in the transfer analysis. See e.g., In re Microsoft Corp., 630 F.3d 1361, 1365 (Fed. Cir. 2011) ("[T]he transfer of documents to a company's offices in anticipation of litigation" is entitled to no weight in the venue analysis.). 4 Case 6:16-cv-00089-RWS-JDL Case 6:19-cv-00129-ADA Document Document 50 37-2 Filed 07/28/16 Filed 05/08/19 Page Page 9 of 21 10PageID of 22 #: 619 C. EMC Has No Connection to this District EMC has no connection to the Eastern District of Texas. EMC is a Massachusetts corporation with its headquarters in Hopkinton, Massachusetts and substantial operations in Santa Clara, California. See Declaration of Peter Smails ISO EMC Corporation's Motion to Transfer Venue ("Smails Decl.") at ¶ 3. EMC does not even have any facilities in Texas other than local sales, professional services, and customer support offices that EMC has across the country. See Smails Decl. at ¶ 5; see Declaration of Josh Goldstein ISO EMC Corporation's Motion to Transfer Venue ("Goldstein Decl.") at ¶ 9. Moreover, EMC has no offices within the Eastern District of Texas. See Smails Decl. at ¶ 5. EMC's Data Domain products were developed and tested in Santa Clara, CA and EMC's engineering personnel responsible for Data Domain technology including the Data Domain Chief Architect Mahesh Kamat, as well as relevant documents are also located in Santa Clara, CA. See Smails Decl. at ¶ 11. The Data Domain technology was originally developed by the Data Domain Corporation which EMC acquired in July 2009. See id. at ¶ 9. The Dell/EMC DD Series products are Data Domain products that were developed tested and supported from EMC's Santa Clara, CA offices. See id. at ¶ 11. Although Dell sold the DD Series products, Dell merely re-branded the EMC Data Domain products and had no involvement with Data Domain technology. See id. at ¶ 8. The Dell/EMC DD Series products are no longer sold by Dell. See id. None of EMC's engineering, marketing or manufacturing-related documents or witnesses for its Data Domain technology or products are located in Texas. See id. at ¶ 14. For the EMC VNX2 Series products, a senior architect in charge of the design and development of the accused functionality, Rich Ruef, resides in Santa Cruz, California. See id. at ¶ 19. None of EMC's engineering, marketing or manufacturing-related documents or witnesses for its VNX2 series technology or products are located in Texas. See id. at ¶ 20. 5 Case 6:16-cv-00089-RWS-JDL Case 6:19-cv-00129-ADA Document Document 50 37-2 Filed 07/28/16 Filed 05/08/19 Page 10 Page of 21 11 PageID of 22 #: 620 For the XtremIO Storage Array products, EMC's senior management and day-to-day operations for these products are located in Santa Clara, CA and Israel. See Goldstein Decl. at ¶ 5. EMC's marketing efforts and personnel for XtremIO are located primarily in Santa Clara, CA. See id. at ¶ 8. Other activities related to XtremIO occur primarily in Israel with a small development team in Hopkinton, MA. See id. at ¶ 6. None of EMC's engineering, marketing or manufacturing- related documents or witnesses for its XtremIO Storage Array technology or products are located in Texas. See id. at ¶¶ 9-10. D. Potential Non-Party Witnesses Reside Outside of the Eastern District of Texas In prior litigations with respect to the asserted patents, EMC has found no instance where a party identified a non-party witness in this District as a witness for trial. Potential non-party witnesses, however, do reside in N.D. Cal. For example, Ke-Chiang Chu is an inventor on several prior art references that EMC may to rely on to allege invalidity. These prior art references were included in invalidity contentions served in a prior litigation brought by Realtime that included two patents which are related to the asserted patents. See Woods Decl. at ¶ 10. Upon information and belief, Dr. Chu lives in Saratoga, California (within N.D. Cal.) and could not be compelled to attend a trial in Texas. See Woods Decl. at ¶ 9. In addition to third parties related to prior art, a number of former EMC employees with information potentially relevant to the litigation reside in the N.D. Cal.. EMC's former Chief Technology Officer, Robin Ren, whose responsibilities included the XtremIO products readies in Northern California and is employed by Tesla. See Goldstein Decl. at ¶ 7. Several former Data Domain Corporation employees with significant involvement in the design, development, and testing of Data Domain technology reside in Northern California including: Brian Biles (a co- founder), Hugo Patterson (a former Chief Architect) and Nitin Garg (former engineer involved with the accused technology). See Smails Decl. at ¶¶ 13 and 16. Several former Data Domain 6 Case 6:16-cv-00089-RWS-JDL Case 6:19-cv-00129-ADA Document Document 50 37-2 Filed 07/28/16 Filed 05/08/19 Page 11 Page of 21 12 PageID of 22 #: 621 Corporation marketing personnel also reside in Northern California including former Chief Marketing Officer ("CMO") Beth White, and Shane Jackson who succeeded Ms. White as CMO of Data Domain. See id. at ¶ 16. III. ARGUMENT This Court should transfer this action to the N.D. Cal. under 28 U.S.C. § 1404(a). The Court should grant a motion to transfer if the moving party demonstrates that (1) "a civil action might have been brought in the destination venue," and (2) "the transferee venue is clearly more convenient" than the one chosen by the plaintiff. In re Volkswagen AG (Volkswagen I), 371 F.3d 201, 203 (5th Cir. 2004) (citation omitted). N.D. Cal. meets both of these criteria here. As Realtime has only made factual allegations against the EMC Data Domain product, EMC addresses the factors for transfer below based on the Data Domain product to show that the N.D. Cal. is the clearly more convenient forum. EMC then briefly addresses the other product lines for which Realtime pled no factual allegations to show that these product lines have minimal impact on the transfer analysis. A. Realtime Could Have Brought This Action In N.D. Cal. There can be no question that Realtime could have brought this infringement suit in N.D. Cal. Under 28 U.S.C. § 1400(b), a plaintiff may file a patent infringement action in any district "where the defendant resides, or where the defendant has committed acts of infringement and has a regular and established place of business." Because EMC maintains a substantial operation in Santa Clara, CA (in N.D. Cal.), Realtime could have brought this infringement action in N.D. Cal. See Smails Decl. at ¶ 3. B. The Private Interest Factors Favor Transfer to the N.D. Cal. In evaluating the private interests in a venue transfer, this Court considers the following factors: "(1) the relative ease of access to sources of proof; (2) the availability of compulsory 7 Case 6:16-cv-00089-RWS-JDL Case 6:19-cv-00129-ADA Document Document 50 37-2 Filed 07/28/16 Filed 05/08/19 Page 12 Page of 21 13 PageID of 22 #: 622 process to secure the attendance of witnesses; (3) the cost of attendance for willing witnesses; and (4) all other practical problems that make trial of a case easy, expeditious and inexpensive." Volkswagen, 545 F.3d at 315 (citation omitted). All private interest factors are either in favor of transfer or neutral. 1. The Primary Sources Of Proof Are In N.D. Cal. "In patent infringement cases, the bulk of the relevant evidence usually comes from the accused infringer," and "the place where the defendant's documents are kept weighs in favor of transfer to that location." In re Genentech, Inc., 566 F.3d 1338, 1345 (Fed. Cir. 2009) (citation omitted). In this case, all of the relevant documents relating to EMC's allegedly infringing Data Domain product are maintained in N.D. Cal. For Data Domain, all of EMC's documents relating to the design, development, marketing, and testing of its Data Domain products are maintained in the company's offices in Santa Clara, CA. See Smails Decl. at ¶¶ 12 and 15. Moreover, the EMC personnel involved with the design, development, testing, and marketing of Data Domain products are all located in Santa Clara including Mahesh Kamat the Chief Architect for Data Domain. See id. at ¶ 11. Finally, as discussed in the following section, numerous former Data Domain Corporation personnel knowledgeable of the accused technology (including marketing) reside in Northern California. See id. at ¶ 13. No relevant evidence in this case is maintained in Texas. See Smails Decl. at ¶ 14. While EMC has small Texas offices, they are used exclusively for the sale and service of EMC products. None of these offices contain evidence pertaining to the infringement claims against Data Domain that is not also available in Santa Clara. See Smails Decl. at ¶ 14. Importantly, EMC has no office within the E.D. Texas. See id. at ¶ 5. 8 Case 6:16-cv-00089-RWS-JDL Case 6:19-cv-00129-ADA Document Document 50 37-2 Filed 07/28/16 Filed 05/08/19 Page 13 Page of 21 14 PageID of 22 #: 623 As for Realtime, EMC is not aware of any relevant evidence of Realtime's that originally was located in this District or even in Texas. To the contrary, Realtime submitted declarations in a prior case that unequivocally affirmed that all of Realtime's witnesses and sources of information were located in New York. See Woods Decl. at ¶¶ 4-5. Should Realtime attest otherwise now, such documents would have been transferred in anticipation of litigation and thus entitled to no weight in the transfer analysis. See Microsoft Corp., 630 F.3d at 1365 ("[T]he transfer of documents to a company's offices in anticipation of litigation" is entitled to no weight in the venue analysis.). Because all of the relevant evidence for EMC's Data Domain product is located in or near N.D. Cal., this factor strongly favors transfer. See Genentech, 566 F.3d at 1345–46 ("Keeping this case in the Eastern District of Texas will impose a significant and unnecessary burden on [defendants] to transport documents that would not be incurred if the case were to proceed in the Northern District of California."). 2. N.D. Cal. Possesses the Relevant Subpoena Power The availability of compulsory process factor favors transfer when more witnesses reside within the subpoena power of the transferee venue than the current venue. See Genentech, 566 F.3d at 1345 ("The fact that [a] transferee venue is a venue with usable subpoena power. . . weighs in favor of transfer, and not only slightly."). In fact, a venue with "absolute subpoena power for both depositions and trial" is preferred. In re Volkswagen of America, Inc. (Volkswagen II), 545 F.3d 304, 316 (5th Cir. 2008). Courts "must quash or modify" a subpoena that compels a person to travel more than 100 miles (or to another state) to testify. Fed. R. Civ. P. 45(d)(3)(A)(ii). Similarly, courts cannot compel a third-party witness to attend a deposition more than 100 miles from the person's residence or place of business or employment. Id. All of the foreseeable witnesses in this case are located outside of this Court's absolute subpoena power because they work and reside more than 100 miles from this Court or outside of 9 Case 6:16-cv-00089-RWS-JDL Case 6:19-cv-00129-ADA Document Document 50 37-2 Filed 07/28/16 Filed 05/08/19 Page 14 Page of 21 15 PageID of 22 #: 624 Texas. As discussed above, all of the EMC personnel involved with the design, development, testing, and marketing of Data Domain products are all located in Santa Clara, CA. Moreover, several non-party witnesses knowledgeable about Data Domain are located in Northern California: (1) Brian Biles, a co-founder of Data Domain (See Smails Decl. at ¶ 13); (2) Hugo Patterson, a former Chief Architect for Data Domain (Id.); (3) Nitin Garg, a former engineer involved with the accused technology (Id. at ¶ 16); (4) Beth White, former Chief Marketing Officer ("CMO") for Data Domain (Id.); and (5) Shane Jackson who succeeded Ms. White as CMO of Data Domain (Id.). See also supra Section II.D. Because it can exercise its subpoena power over all of the foreseeable party and third-party witnesses for Data Domain in this action, the Northern District of California is a clearly more convenient venue for the parties to present relevant testimonial evidence at trial. See Fed. R. Civ. P. 45(d)(3)(A)(ii). As a result, this factor overwhelmingly favors transfer to N.D. Cal. Volkswagen II, 545 F.3d at 316–17; Genentech, 566 F.3d at 1345. 3. The Cost of Attendance for Willing Witnesses Will Be Substantially Lower In The Northern District of California While no single factor is dispositive, "[t]he convenience of witnesses is probably the single most important [one]." Genentech, 566 F.3d at 1343 (citation omitted). As discussed in Section II, all of EMC's known potential party and non-party witnesses are located in Northern California. See Smails Decl. at ¶¶ 11, 13, 15, and 16. Allowing Realtime's action to proceed in this District would impose significant burdens on a number of EMC's potential witnesses. Here, the distance between this District and N.D. Cal. is approximately 1,780 miles, which is about the same distance as between this District and EMC's Santa Clara, CA offices. See Woods Decl. at ¶ 11 and Exhibit G. In contrast, the distance between EMC's Santa Clara, CA offices and the San Jose Division of N.D. Cal. is about 8 miles. See Woods Decl. at ¶ 12 and Exhibit H. If this 10 Case 6:16-cv-00089-RWS-JDL Case 6:19-cv-00129-ADA Document Document 50 37-2 Filed 07/28/16 Filed 05/08/19 Page 15 Page of 21 16 PageID of 22 #: 625 case remains in this District, multiple EMC employees would be required to travel a substantial distance for trial to a location where they have no office, residence, operations, or community. This travel would disrupt business operations for EMC and would burden EMC with disproportionate travel and lodging costs. In comparison, EMC's party witnesses would incur only slight costs to attend trial in the N.D. Cal. because of the close proximity of that court to the work or residence of these witnesses. Id. In contrast, Realtime's apparent witnesses will not suffer similar burdens if the case were transferred because they already must travel a significant distance to testify in this District. For example, as a New York resident, James Fallon who is the named inventor and a Realtime officer— must travel at least 1,500 miles to testify at trial in this District. See Woods Decl. at ¶ 16 and Exhibit I. Similarly, it appears that the other "will call" witnesses identified by Realtime in a prior litigation involving the asserted patents reside in New York, and there is no indication that Realtime has a single employee in this District. See supra Section II.B. 4. Considerations of Judicial Economy Do Not Weigh Against Transfer Even though the other private interest factors favor transfer, Realtime might argue that judicial efficiency justifies retaining venue in this District because Realtime chose to bring other lawsuits before this Court involving some or all of the asserted patents. But Realtime's election to sue many different defendants in this forum cannot "create" judicial or other practical economies. See In re Zimmer Holdings, Inc., 609 F.3d 1378, 1382 (Fed. Cir. 2010) (the existence of another suit in the forum does not "negate[] the significance of having trial close to where most of the identified witnesses reside and where the other convenience factors clearly favor" transfer).6 And, in any 6 Under similar circumstances, where a plaintiff chose to file multiple lawsuits in a district, and the defendant moved to transfer early in the litigation, courts have found the judicial economy factor neutral and granted transfer to the more convenient forum. See Klausner Techs., Inc. v. Interactive Intelligence Grp., Inc., No. 6:11-cv-578-LED, ECF No. 36, Order at 7 (E.D. Tex. Sept. 26, 2012) (finding this factor neutral where the plaintiff had filed over fifty cases involving 11 Case 6:16-cv-00089-RWS-JDL Case 6:19-cv-00129-ADA Document Document 50 37-2 Filed 07/28/16 Filed 05/08/19 Page 16 Page of 21 17 PageID of 22 #: 626 event, the "America Invents Act contemplates that each patent case will be treated separately." LT Tech, LLC v. Frontrange Solutions USA Inc., 2013 WL 6181983, at *5; see also GeoTag, Inc. v. Starbucks Corp., No. 2:10-cv-572, 2013 WL 890484, at *6 (E.D. Tex. Jan. 14, 2013) (permitting the existence of separately filed patent infringement cases to sway a venue transfer analysis would allow plaintiffs to "manipulate venue by serially filing cases within a single district" and "would undermine the principals underpinning transfer law and the. . . America Invents Act"). Similarly, the fact that this Court has presided over past cases involving one of the asserted patents does not disfavor transfer. This is a separate and distinct case involving entirely different accused technology, a different set of patents and claims changed through re-examination. The Court's work on closed cases is not relevant to the transfer analysis, and the judicial economy factor is neutral. E.g., Zimmer, 609 F.3d at 1382; Verizon, 635 F.3d 559 at 562 (Fed. Cir. 2011) ("[W]e deem the Eastern District's previous claim construction in a case that settled more than five years before the filing of this lawsuit to be too tenuous a reason to support denial of transfer."). C. The Public Interest Factors Also Favor Transfer To The Northern District Of California The public interest factors likewise compel the conclusion that the Northern District of California is a more appropriate forum. Those considerations are "(1) the administrative difficulties flowing from court congestion; (2) the local interest in having localized interests decided at home; (3) the familiarity of the forum with the law that will govern the case; and (4) the avoidance of unnecessary problems of conflict of laws or in the application of foreign law." Volkswagen, 545 F.3d at 315 (citation and alteration omitted). Although the first, third, and fourth public interest the same patent-in-suit as "case is still in its infancy; no discovery or status conference has taken place yet[;] and it would not overly prejudice [the plaintiff] if the case was transferred"); Innovative Global Sys. LLC v. OnStar, LLC, No. 6:10-CV-574-LED-JDL, ECF No. 156, Order at 12 (E.D. Tex. Feb. 14, 2012) (a "co-pending suit in its infancy. . . does not increase the Court's familiarity with the patents-in-suit and therefore does not implicate judicial economy"); accord Zimmer, 609 F.3d at 1382; cf. In re Verizon Bus. Network Servs., Inc., 635 F.3d 559, 562 (Fed. Cir. 2011) ("To interpret § 1404(a) to hold that any prior suit involving the same patent can override a compelling showing of transfer would be inconsistent with the policies underlying § 1404(a)."). 12 Case 6:16-cv-00089-RWS-JDL Case 6:19-cv-00129-ADA Document Document 50 37-2 Filed 07/28/16 Filed 05/08/19 Page 17 Page of 21 18 PageID of 22 #: 627 factors are neutral as discussed below, the second public interest factor involving a forum's local interest weighs heavily in favor of transfer to the Northern District of California. 1. N.D. Cal. Has A Strong Local Interest In This Litigation Northern California has a strong local interest in the resolution of this litigation. EMC has 14 offices in Northern California and employs 2,300 people. See Smails Decl. at ¶ 4. EMC's Data Domain products was designed, developed, tested, and marketed in Northern California. N.D. Cal's interest in this case is thus significant because the allegations call into question the work and reputation of engineers responsible for that work, as well as EMC's reputation. In re Hoffmann-La Roche Inc., 587 F.3d 1333, 1336 (Fed. Cir. 2009) (finding that the proposed transferee district's "local interest in this case remains strong because the cause of action calls into question the work and reputation of several individuals residing in or near that district and who presumably conduct business in that community"); Network Prot. Scis. LLC v. Juniper Networks, Inc., No. 2:10-CV- 224-JRG, 2012 WL 194382, at *7 (E.D. Tex. Jan. 23, 2012) (similar). In contrast, Realtime's sole tie to this District—an office created for litigation—represents the classic "recent, ephemeral, and [] artifact of litigation" connections that the Federal Circuit has rejected as proper bases for declining transfer. Zimmer, 609 F.3d at 1381 (ordering transfer and discounting plaintiff's presence in Texas because it "appear[ed] to be recent, ephemeral, and an artifact of litigation"). Realtime should not be able to thwart the venue laws merely by renting an office in Tyler without any employees in the District and without non-litigation work being done there. See Microsoft, 630 F.3d at 1364 ("[C]ourts [must] to ensure that the purposes of jurisdictional and venue laws are not frustrated by a party's attempt at manipulation."). 2. The Remaining Public Interest Factors Are Neutral The first public interest factor—administrative issues related to congestion—is neutral. Although the speed with which a case can be resolved is a factor in the transfer analysis, the 13 Case 6:16-cv-00089-RWS-JDL Case 6:19-cv-00129-ADA Document Document 50 37-2 Filed 07/28/16 Filed 05/08/19 Page 18 Page of 21 19 PageID of 22 #: 628 speculative nature of this factor generally does not weigh in favor of or against transfer. See Optimum Power Solutions LLC v. Apple, Inc., 794 F. Supp.2d 696, 702 (E.D. Tex. 2011) ("This factor appears to be the most speculative, and this factor alone should not outweigh other factors."). The third and fourth public interest factors—the familiarity of the forum with the law that will govern the case and the avoidance of unnecessary problems of conflict of laws, respectively— are neutral because this matter arises entirely under patent law. LT Tech, 2013 WL 6181983, at *7– 8. As a result, there is no foreseeable conflict of law, and both courts are equally capable of applying the applicable law. Id. D. N.D. Cal. is Still the Clearly More Convenient Forum Even Considering the Additional EMC Products Accused by Realtime EMC submits that the two additional EMC products, for which Realtime made no factual allegations, should not be part of any venue transfer analysis because the allegations against these products should be dismissed. See EMC's Motion to Dismiss at 1-2, 7-8. However, even if the Court considers the two additional products, N.D. Cal. is still the clearly more convenient forum. Applying the facts associated with these two products to the transfer analysis has no, or at most minimal, impact on the strength of the analysis favoring transfer. For the XtremIO Storage Array products, the majority of documents relating to marketing activities are located in EMC's Santa Clara, CA offices and, for both the VNX2 Series and XtremIO Storage Array products, none are located in Texas. See Smails Decl. at ¶ 20; Goldstein Decl. at ¶¶ 8, 9, 10. Although some of EMC's evidence relating to the design and development of the VNX2 Series products and XtremIO Storage Array products are located in Massachusetts and Israel, respectively, that fact does not counsel against transfer given that EMC will have to transport this evidence whether the case proceeds in Texas or California. See In re Genentech, 566 F.3d 1338, 1346 (Fed. Cir. 2009) (concluding that even though it was "more inconvenient" for the plaintiff to transport its documents to the desired transferee district, that fact did not weigh against transfer 14 Case 6:16-cv-00089-RWS-JDL Case 6:19-cv-00129-ADA Document Document 50 37-2 Filed 07/28/16 Filed 05/08/19 Page 19 Page of 21 20 PageID of 22 #: 629 because the documents "will need to be transported in any event"). Whether the case proceeds in Tyler or San Francisco, those documents and witnesses "will need to be transported in any event." Id. A number of potential party witnesses for both of these products and some third party potential witnesses are located in Northern California. Specifically, for the EMC VNX2 Series products, an architect of the accused functionality, Rich Ruef, is located in Santa Cruz, CA, within the Northern District of California. See Smails Decl. at ¶ 20. For the XtremIO Storage Array products, much of EMC's senior management and day-to-day operations for these products are located in N.D. Cal. See Goldstein Decl. at ¶ 5. Also, EMC's marketing efforts and personnel for XtremIO are located primarily in N.D. Cal. See id. at ¶ 8. Finally, EMC's former Chief Technology Officer, Robin Ren, whose responsibilities included the XtremIO products is also located in Northern California. See id. at ¶ 7. Any other potentially relevant EMC personnel for the accused products are either located in Israel or in Massachusetts and none are located in Texas. See Smails Decl. at ¶ 20; Goldstein Decl. at ¶ 9. Moreover, EMC has no offices in E.D. Texas. See Smails Decl. at ¶ 5. For the employees located in Israel, this District is no more convenient than N.D. Cal. as there is no significant difference in the convenience factor for international travel. See Ricoh Co. v. Honeywell, Inc., 817 F. Supp. 473, 484 (D.N.J. 1993) (witnesses in Japan were no more inconvenienced by testifying in Minnesota than in New York). Both of the additional EMC products have substantial connections to N.D. Cal. Even if they are considered, they do not alter that the factors considered for venue transfer weigh strongly in favor of transfer to N.D. Cal. IV. CONCLUSION For at least the reasons stated above, EMC respectfully requests that the Court transfer EMC to the U.S. District Court for the Northern District of California. 15 Case 6:16-cv-00089-RWS-JDL Case 6:19-cv-00129-ADA Document Document 50 37-2 Filed 07/28/16 Filed 05/08/19 Page 20 Page of 21 21 PageID of 22 #: 630 Dated: July 28, 2016 Respectfully submitted, By: /s/ Brian Craft Eric H. Findlay State Bar No. 00789886 Brian Craft State Bar No. 04972020 FINDLAY CRAFT, P.C. 102 N. College Avenue Suite 900 Tyler, TX 75702 903-534-1100 903-534-1137 – Fax efindlay@findlaycraft.com bcraft@findlaycraft.com Thomas M. Dunham D.C. Bar No. 448407 Attorney-in-Charge J. Michael Woods D.C. Bar No. 975433 Corrine M. Saylor (pro hac vice) D.C. Bar No. 997638 Nathan R. Thoreson (pro hac vice) Virginia Bar No. 84542 Winston & Strawn LLP 1700 K Street, N.W. Washington, DC 20006 Telephone: (202) 282-5000 Fax: (202) 282-5100 TDunham@winston.com MWoods@winston.com CSaylor@winston.com NThoreson@winston.com Attorneys for Defendant, EMC Corporation 16 Case 6:16-cv-00089-RWS-JDL Case 6:19-cv-00129-ADA Document Document 50 37-2 Filed 07/28/16 Filed 05/08/19 Page 21 Page of 21 22 PageID of 22 #: 631 Certificate of Service The undersigned hereby certifies that all counsel of record are being served with a copy of this document via the Court's CM/ECF system per Local Rule CV-5(a)(3). /s/ Brian Craft Brian Craft Certificate of Conference On July 19, 2016, Michael Woods, on behalf of Defendant EMC, conferred with Reza Mirzaie, on behalf of Plaintiff Realtime. Realtime opposes the relief requested by Defendants. /s/ J. Michael Woods J. Michael Woods 17